The music industry isn’t always the most popular business in conservative circles. But this summer, the industry is getting a big boost from the most powerful Republican in the Senate.
Majority Leader Bill Frist (R-Tenn.) quietly has gone to bat for the Recording Industry Association of America and other groups to make sure that a key industry priority was included in the massive overhaul of telecommunications laws that the panel approved just before the July Fourth recess, several Senate Commerce, Science and Transportation Committee aides confirmed.
The provision Frist helped place prevents satellite radio listeners from being able to record, store and rearrange music they receive from popular subscription services such as XM and Sirius. Music industry officials say that such copying would cheat labels and artists out of fees that consumers otherwise would pay when buying music on CDs or from online music services.
But the push by the record labels is rankling radio, electronics and consumer groups, who argue that listeners should be able to store songs for personal use as long as they are not selling or passing them along.
Several Commerce Committee aides confirmed that Frist had made it clear that he would allow the telecom bill to come to the floor only if it included the measure, which is commonly called the “audio flag” provision.
“It was a decision that the chairman and members of the committee had to make,” said a Republican staffer to a committee member. “If they wanted to get the bill out of committee and onto the floor, they had to include this, and so they included it.”
A GOP aide to another committee member said: “Frist was pretty insistent on having this in the bill.”
“I guess he sees this as his last chance to do something parochial for his constituents,” the aide said, referring to the multibillion-dollar country music industry centered in Nashville, Tenn. “It was made pretty clear at the staff level — there would be very little chance this bill would get floor time if this wasn’t in the bill.”
Beyond what appears to be a home-state interest in the issue, aides and lobbyists close to the debate noted that former Frist Chief of Staff Mitch Bainwol now heads the record labels’ lobby, the RIAA.
“Frist is very interested in content protection and fighting piracy because of Nashville and supports this important provision,” said a spokeswoman for Frist.
The RIAA declined to comment for this story.
David Israelite, head of the National Music Publishers Association, said his group, which represents publishers and songwriters, jointly has lobbied the issue with the RIAA. He said he was unsure of Frist’s involvement, “but it wouldn’t surprise me, because Sen. Frist has always been a very strong supporter of the songwriters in his district.”
Debate on the provision is only one of many big-money lobbying fights touched off by the Senate’s sprawling rewrite of telecom laws.
Unlike a narrower House measure that was approved last month, the Senate version seeks to tackle a number of controversial issues at once. That has led industry sources to speculate that the measure could collapse under its own weight. Frist himself has said 60 Senators must be on record in support of the bill before he brings it to the floor.
But lobbyists working to scuttle the audio-flag provision are nervous that Frist’s push to include it in the telecom overhaul belies a deeper will to get it across the finish line any way he can, including by adding the provision to must-pass measures at the end of the year.
The record labels’ campaign has urgency, since XM and Sirius already have rolled out devices that allow users to store music broadcast over their networks. According to the radio companies, the technology works like a more advanced method of tape-recording songs off a traditional radio broadcast. Users can store songs they’ve recorded and arrange them on a playlist, but they can’t transfer them onto a CD or upload them onto the Internet. For instance, they can record a block of songs — say, an hour of Coldplay — and later sort through which ones to save and which to trash. Once a listener’s subscription to the service ends, the songs are lost.
“Our concern is that consumers have had the right to record music off the radio for decades. This basically would overturn that for no good reason,” said Art Brodsky, communications director for the consumer group Public Knowledge.
Record labels say the new technology is anything but an update of established, legal radio recordings. In recent House testimony, the RIAA’s Bainwol said, “With these devices, you can tape without listening. That’s not old-fashioned listening to the radio. You’ve changed the fundamental nature of radio.”
Israelite said the technology allows users to record dozens of hours of music at a time, then sift through the results to keep desired songs. Since the device is portable, users can then tote their music library as they would with an Apple iPod.
The fight on Capitol Hill is playing out against the backdrop of a court challenge. Record companies backed by the RIAA have filed suit in federal court in New York claiming that XM’s device, called the Inno, violates copyright law.
The court case aside, several Congressional aides said they are skeptical that the record labels’ language will survive in the Senate telecom bill if it reaches the floor. They said free-market Republicans on the committee, such as Sen. John Sununu (R-N.H.), objected to the provision on the grounds it could stifle technological innovation.
Sununu had been set to offer an amendment to strike the provision during markup of the bill. He withdrew the amendment, however, and said he would bring up the issue on the floor.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.